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Trillo v. Biter

United States Court of Appeals, Ninth Circuit

June 16, 2014

VICTOR BERNARD TRILLO, Petitioner-Appellant,

Argued and Submitted, San Francisco, California: March 13, 2014.

Page 1086

Appeal from the United States District Court for the Eastern District of California. D.C. No. 2:06-cv-01287-J KS. James K. Singleton, Senior District Judge, Presiding.

Steven C. Sanders (argued), Sanders & Associates, West Sacramento, California, for Petitioner-Appellant.

R. Todd Marshall (argued), Deputy Attorney General, Kamala D. Harris, Attorney General of California, Michael P. Farrell, Senior Assistant Attorney General, and Catherine Chatman, Supervising Deputy Attorney General, Sacramento, California, for Respondents-Appellees.

Before: J. Clifford Wallace, M. Margaret McKeown, and Ronald M. Gould, Circuit Judges. Opinion by Judge Wallace.


Page 1087

WALLACE, Circuit Judge:

After Victor Trillo was convicted of second-degree murder by a trial court of the State of California, his conviction affirmed by the California Court of Appeal, and his state collateral remedies exhausted, he filed this habeas petition pursuant to 28 U.S.C. § 2254. The district court denied the petition. Trillo appealed. We granted a certificate of appealability on three issues: " (1) whether the prosecutor [in Trillo's trial] committed prejudicial misconduct during closing argument; (2) whether trial counsel was constitutionally ineffective for failing to object to additional closing remarks made by the prosecutor; (3) whether the trial court violated petitioner's Sixth Amendment right to present a meaningful defense by excluding testimony regarding a statement made by a witness to the victim which might have corroborated petitioner's theory of defense." We have jurisdiction over this timely filed appeal under 28 U.S.C. § § 2253, 2254, and 1291. We affirm.


Trillo was at a party with several friends. Two individuals at the party got into a fist fight. Confusion and yelling followed. Several men took off their shirts and began fighting. Trillo had a gun, and fired at another partygoer, killing him. Trillo was later arrested after fleeing the scene and the state.

Trillo's theory in his state court trial for second-degree murder was that he had acted in self-defense. According to Trillo, during the fight he was hit in the back, and then saw someone approach him with

Page 1088

a knife. At trial, Trillo's attorney attempted to have admitted witness testimony that a man had approached the victim after the shooting asking " Was it worth it?" In a hearing held outside of the jury's presence, the trial court refused to allow this testimony, because there was an insufficient foundation to admit the statement.

Trillo's attorney objected to three statements made by the prosecutor during his closing argument. First, the prosecutor stated that the " [f]irst story was a lame one, first story was I wasn't the shooter" -- implying that Trillo had changed his theory of the case from innocence to self-defense. After Trillo's attorney objected to this statement, the court admonished the jury that " I don't believe there was" evidence supporting the prosecutor's argument. A few moments later, the prosecutor suggested that friends of Trillo's who had testified on his behalf had changed the stories they provided to investigators after coordinating with each other. Defense counsel again objected, which led to a hearing out of the jury's presence. The judge ultimately denied Trillo's motion for a mistrial or curative statement to the jury. Finally, the prosecutor suggested what would happen to members of the jury if they " walked" Trillo after they " got the instructions about reasonable doubt." The prosecutor stated that if jurors informed a neighbor about the acquittal, " [y]our neighbor's going to be, you did what? And you're going to be very uncomfortable." Defense counsel objected. The trial court told the prosecutor to continue but to " relate to the evidence."

The prosecution also made other statements in its closing argument to which Trillo's attorney did not object, including statements that Trillo had removed his shirt at the beginning of the fight, and that Trillo belonged to a gang and had a criminal history.

The jury convicted Trillo of murder. The judge denied his motion for a new trial. He appealed the conviction to the California Court of Appeal, which affirmed. People v. Trillo, 2004 WL 2943242 (Cal. Ct. App. Dec. 1, 2004). The California Supreme Court denied his petition for review. Trillo filed a timely state habeas petition and a timely federal habeas petition. His federal petition was stayed to allow him to exhaust his state court remedies. ...

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